History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v5.c71.s1.257
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v5.c71.s1.257
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Parāśara VIII. 29 states that the king also should not ignore the pariṣad and should not by himself prescribe penance. Paithīnasi quoted by the Daṇḍaviveka (p. 76) provides¹⁷⁰ for both prāyaścitta and punishment and from the tenor of the verse it appears that both were to be enforced by the king. The position is tolerably clear as to medieval times. One feels great hesitation in stating definitely the relation of punishment to penances and the king's position as to both in ancient times. Āp. Dh. S. I. 9. 24. 1-4 provide¹⁷¹ that one who kills a kṣatriya or a vaiśya or a śūdra shall respectively give one thousand cows, a hundred cows and ten cows for the purpose of removing the enmity and that in each of these cases one bull was to be given in addition for the purpose of expiation. Āpastamba does not expressly state to whom the cows were to be given. The commentator Haradatta explains that they were to be given to brāhmaṇas. Manu XI. 127, 129, 130, and Yāj III. 266-267 have similar provisions but in the chapter on penances. On the other hand, Baud. Dh. S. I. 10 23. expressly states that the cows are to be given to the king. As both the words ‘vairaniryātanārtham’ and ‘prāyaścittārthaḥ’ are employed by Āp. it may be said that the cows were to be made over to the king even according to Āpastamba.
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The cows were to be made over to the king for bestowal on the family of the murdered person to mollify them and if they refused to receive them the king was not to retain them for himself but was to distribute them among brāhmaṇas. We know that Manu (IX. 243-245) provides that the fine recovered from a man guilty of mortal sins was not to be taken for himself by the king but was to be offered to Varuṇa and thrown into water or was to be distributed among learned brāhmaṇas. Manu IX. 236 provides that for those who were guilty of the four grave sins (brāhmaṇa murder &c.) and did not undergo penance for the same the king should inflict corporal punishment (branding on the forehead) together with fine in accordance with the śāstra. Manu IX. 237 (= Matsya 227 164) and Visnu V. 4–7 say that on the forehead a mark of female private parts with red-hot iron should be branded in the case of incest, the mark of a tavern flag in the case of drinking *surā*, the mark of dog's foot in the case of theft (of brāhmaṇa's gold) and the mark of a headless trunk in the case of a brāhmaṇa-murder. Manu IX. 240 further prescribes that men of all castes guilty of the four mahāpātakas committed unintentionally that perform the proper penance should not be branded on the forehead by the king but should be awarded the highest fine Manu IX.
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241 and 242 provide that a brāhmaṇa guilty of these grave sins unintentionally may be punished with the middle amercement (if he himself be possessed of good qualities) but if he was guilty of the grave sins committed intentionally he should be banished from the kingdom being allowed to take with him his wealth and paraphernalia; while persons other than brāhmaṇas when guilty of grave sins unintentionally committed were to be deprived of all their wealth and if guilty intentionally they were to be sentenced to death. These verses show that though prāyaścitta be performed persons guilty of grave sins were liable to undergo punishment and if no penance was performed then they were liable to branding and also fines etc Manu XI. 56 provides that bearing false witness is similar to the drinking of *surā* and Manu XI. 57 and Yāj. III. 230 hold that misappropriation of a deposit is like the theft of gold Viṣṇu Dh. S (V 169) provides that the misappropriator of a deposit was to be made to return the deposit or its price with interest and was to be punished like a thief by the king and V 179 that a false witness had all his property confiscated. These instances establish that both fines by the king (i. e rāja-daṇḍa) and penances prescribed by the assembly of learned men (i. e pariṣaddaṇḍa or daiva daṇḍa) had to be undergone by those guilty of some grave sins that were also looked upon as crimes In some cases the penance and the punishment were the same For example, Gaut 23 10–11, Vas.
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20. 13, Manu XI 104, Yāj. III 259 and several other smṛtikāras prescribe for incest the penance of the excision of the testicles and penis and proceeding toward the south or south-west till the body falls Nārada as quoted above prescribes for incest the punishment (*daṇḍa*) of the excision of the testicles The Mit. on Yāj. III. 233 quotes Nārada and remarks that the punishment of excision and death prescribed by Yāj III. 233 applies only to non-brāhmaṇas and that in such cases the punishment of death itself is the prāyaścitta There were works like the Madanapārijāta¹⁷² (p. 827) and the Mitākṣarā that held that the prohibition against corporal harm to brāhmaṇas (Manu VIII. 380) applies only to matters other than prāyaścittas and that since the Manusmṛti itself (XI. 100) states that a brāhmaṇa guilty of theft of brāhmaṇa's gold may go to the king with an iron club and have his head smashed by the king, the death of a brāhmaṇa as a penance for theft by being struck with a club presented by himself was not ruled out. In some cases punishment by the king was deemed to have purged a man of sin and no penance seems to have been thought necessary, as Manu VIII. 318 (=Vas 19.45) says 'men that commit sins and are punished by the king become purified and reach heaven like good men who perform meritorious deeds.' The Mit on Yāj. III. 259 explains that this holds good only where the punishment is death, as in the case of incest noted above. Āp. Dh. S. II. 10 27.
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15–16 provide ¹⁷³ that a person guilty of slaying a man, of theft and of forcible seizure of land was to be deprived of his wealth by the king and was to be sentenced to death and that if the offender was a brāhmaṇa he was to have a piece of cloth tied over his eyes for the whole of his life (i. e. he was not to be sentenced to death). It appears that in very ancient times as provided by Āp. Dh. S. I 9.25.4 the thief approached the king ¹⁷⁴ with a club (of iron or *khadira* wood) on his shoulder and announced his guilt, when the king struck him with the club; on his being killed he became free from guilt. This was a penance as well as a legal punishment. Manu has a similar rule in his chapter on punishments (VIII. 314–316) providing that the thief should carry a weapon (called *musala*) or a club of *khadira* wood or a double-edged *śakti* or an iron staff and that if the king strikes him once with the club and he is killed or if he is not killed but is allowed to go half dead and lives, the thief is freed from the guilt. The Mit. on Yāj. III. 257 quotes a prose passage from Śaṅkha and a verse from Saṃvarta (122) to the same effect Manu in the chapter on penances (XI. 100-101 = Agnipurāṇa 169. 20-21) provides the same procedure for theft as a penance. Vas 20. 41, Yāj. III. 259, Viṣṇu 52. 1-2 and Parāśara XII. 69-70 provide a somewhat similar penance for the thief of brāhmaṇa's gold. Vasiṣṭha introduces an important change viz.
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that the king hands over to the thief a weapon made of udumbara wood (or probably of copper) with which the thief is to kill himself. It appears that gradually the king gave up this unpleasant method of awarding punishment personally Nārada¹⁷⁵ (pariśiṣṭa, verses 46-47) provides that after the thief comes running to the king and announces his guilt, the king was to touch him (with the club, as a symbolic gesture) and then let him off and the thief became freed from sin by his confession of guilt. It has to be remembered, however, that the thief had to restore, even when he underwent penance, stolen property, as stated by Manu VIII. 40, Yāj. II. 36 and 270, Bṛhaspati and by digests¹⁷⁶ like the Pr. Prakāśana If it were impossible to make the thief restore the stolen property the king had to make it good from his own treasury¹⁷⁷ (Gaut X. 47, Śāntiparva 75. 10, Kauṭilya III. 16) or he had to make his officers¹⁷⁸ entrusted with the duty of preventing thefts pay the price of the stolen property (Āp Dh. S. II. 10. 26. 8). Vide for further details H. of Dh vol. III. pp. 166-168. It appears that the actual carrying out of the sentence of death was later on assigned to Cāṇḍālas as stated by Manu X. 56 and Viṣṇu Dh. S. 16. 11 (vadhya-ghātitvaṃ cāṇḍālānām).